The South Korean Justice Ministry stopped Friday’s appeal by the army against a landmark court decision that stated it illegally discharged its first transgender soldier, before she was discovered dead earlier in the year.
The ministry oversees government-related lawsuits and stated in a statement that it had instructed the army to not appeal. This was due to legal logic, as well as the “constitutional spirit respecting human dignity” as public sentiment.
The Defense Ministry stated earlier this week that it had decided to allow the appeal of the army in the case against former Staff Sergeant Byun HUI-su, and asked the Justice Ministry for approval.
Human rights advocates were furious and urged the military not to deny the verdict. They should also work with the military to ensure that sexual minorities are served.
The Defense Ministry and Army didn’t immediately respond to the Justice Ministry’s decision.
South Korea bans transgender individuals from joining the military, but does not have specific laws regarding what to do about those who use sex reassignment procedures during their service.
On Oct. 7, the Daejeon District Court ruled that Byun was discriminated against by the army and rescinded her discharge for having undergone gender reassignment. Seven months ago, she was found dead at her Cheongju home.
After the army determined that Byun’s tank driver operation might be grounds for dismissal, Byun was dismissed in January 2020. The army cited a law that permits the military to discharge personnel with a mental or physical disability, unless the injury is sustained in combat. They also argued that Byun’s male genitals were a disability.
Daejeon’s court ruled that the army’s decision not to discharge Byun could not be legally justified as it was based upon Byun’s assertion of being male.
The court noted that Byun applied to Cheongju District Court for a change in her legal status to become a woman to which the army knew before it discharged her. According to the Daejeon court, Byun should have been considered a woman by the army and this would have invalidated her disability argument. Byun had requested that the Cheongju court grant her request several weeks after she was discharged.
Byun claimed that she had undergone sex reassignment in Thailand in November 2019. She was depressed about her sexual identity and wanted to continue her service. However, a military panel denied her appeal. In August 2020, she filed a suit against the military. Her family received the suit upon her death.
On Thursday, Suh Wook, Defense Minister, stated that allowing transgender individuals to serve in military should be a matter for public consensus. He also implied that it could hurt military morale.
These concerns were ignored by the Justice Ministry, who stated that the Daejeon court’s ruling wasn’t a call to transgender people to be allowed to serve but that it was a recognition of the legality of the army’s decision not to discharge Byun.
Byun’s story struck a chord in a conservative country, where transgender and other sexual minorities face harassment, abuse, discrimination, and often suffer from depression.
Most South Korean able-bodied men must serve 18-21 month in the military as part of conscription to deter North Korea’s aggression. To become a professional soldier, Byun joined the military as a non-commissioned officer.
